Caperton and campaigns for the U.S. Supreme Court

Several political scientists have compared the federal judicial appointments process to state elective judicial campaigns. There are media campaigns with a blizzard of op-eds and directed advertisement in particular states, attack ads, lots of spin, and fund raising appeals, all with the ultimate aim of making it more or less likely that a particular individual will occupy judicial office.

In semi-retirement, Justice Sandra Day O’Connor has criticized state elective judiciaries and the effect money and campaigning have on state-level judicial independence. I’m going to venture a guess that far more money is spent supporting/opposing a campaign to get a justice appointed to the U.S. Supreme Court than to any particular state supreme court race. In light of the fact that federal appointments campaigns increasingly resemble state elective campaigns, should Justice O’Connor’s concerns about the influence of money on judicial independence extend to the appointment campaigns waged over the federal judiciary?

In Caperton, Don Blankenship spent some $3 million – principally through a 529 and independent expenditures – supporting a candidate for the West Virginia Supreme Court while opposing another. West Virginia voters eventually elected Justice Benjamin, the Blankenship-backed candidate, to the state supreme court. Subsequently, a plaintiff moved to have Benjamin disqualified from a case in which A.T. Massey Coal Company was a defendant because Blankenship was the company’s chairman, CEO, and president. Benjamin then voted with the majority in favor of Massey. The U.S. Supreme Court said that the Due Process Clause (the one in the 14th Amendment) compelled Benjamin’s recusal because of the probability of actual bias resulting from a debt of gratitude toward Blankenship for his financial support.

Suppose a wealthy individual or group spends $3 million in independent expenditures backing a particular replacement for Justice Stevens. To make it analogous to Caperton, let’s say the funds are given to a third party such as Alliance for Justice, which is active in fighting for a judicial nominee. Assume, then, the wealthy donor has a case where a personal interest is at stake. Should the presumptively disfavored litigant have a Caperton-style ground for disqualification of the justice because massive independent expenditures were made to support that justice’s confirmation and appointment? Caperton said that the context of the judicial race was significant, namely, the relative size of the expenditures in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election. So, granted, we would have to be talking about some real outlays of cash in the federal appointments contest. But would it mandate disqualification?

Assuming it could possibly, would such information supporting a Caperton claim be readily obtainable in the appointments context? Perhaps someone familiar with federal election law could say, but are expenditures in favor of federal judicial nominees even reportable under FECA? I assume not—there is no candidate for election, just a nominee appointed in an election-like environment—but if not, in light of the needs of a Caperton-type inquiry, do we now need laws that require reporting of such expenditures? Further, if a Caperton disqualification extends to political campaigns for appointive judicial office, ought it to matter whether the individual’s interest is strictly pecuniary, or do ideological interests count too? What if one’s ideological interests align with more remote financial interests (e.g. supporting a nominee for pro-environmental positions, but also having a financial stake in green energy)?

3 Responses

I see one fundamental flaw in the analogy, the new Justice once confirmed has a lifetime appointment. The WV justice, by contrast faces a new round of elections in 3(?) years. While the any support a candidate for confirmation to the Court receives will no doubt play some role in their memory and life, and granted that no judge is truly capable of divorcing themselves entirely from their experiences in ruling, any support during the confirmation process would be unlikely to amount to more than a tiny voice in the public dialogue and that candidates life experience.

What makes the issue so different in Caperton is not that Justice Benjamin owed a debt to Blankenship for his election, it is that the debt was a continuing element of bias. I think the facts of Caperton highlight this well, seeing how the bulk of the money spent by Blankenship was directed towards a virulent attack on the opposing candidate for the seat. This makes it clear that Blankenship was prepared and capable of removing a member of the judiciary that offended him, and by extension Massey. The perception, whether valid or not, that Justice Benjamin would need Blankenship’s benefice, or at the very least need to avoid his wrath, in order to be reelected is unescapable in Caperton. As opposed to a Justice of the Court, who is accountable to no one but themselves once confirmed, ask Eisenhower about that.

I’m not sure it would require recusal because the Justice would be so far removed from the money spent on the confirmation. The reason is that all of the money spent in support or against an appointee would be directed at the public. The public would then put pressure on their respective Senators, who would then vote on the confirmation of said Justice. Thus, the money is widely dispursed and has little causal impact.

Now if it was found that a given amount of money was spent directly lobbying a few key Senators in the confirmation battle, it might make sense for the Justice to have to recuse him/herself. Similarly, if the Justice has financial holdings in Green Company X and if a case before the Court could either increase or decrease the value of said holdings, he/she should recuse themselves.